Originally published at: https://boingboing.net/2017/08/25/india-sexual-orientation-is-a.html
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I feel very happy about this.
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Wow this is huge and i really did not expect to hear this sort of news coming from that part of the world. I’m happy to be proven wrong, India is a very conservative country. I really hope this leads to more protections for LGBQT there, i’m sure there’s more work to be done and that this is only the start.
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Cool, @beschizza. Of course transgender is not a sexual orientation.
Not any more than age, religion, height, etc. are sexual orientations.
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Of course 
The conversation around gender identity and sexual orientation often get lumped together out of necessity i imagine because even though they aren’t the same thing they are both under the “Not the normal convention”. I can forgive Rob for doing so, but you are correct that its important to make that distinction.
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Between this and that right to privacy thing, go India!
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And immediately, hate crimes were a thing of the past.
This was the right to privacy thing - part of the same judgement. The context is important.
So what happened was this: we have this thing called Aadhaar - basically a national identity card, and the government basically wants to link it to pretty much everything from bank accounts to social services. Several activists filed a case saying that this is a violation of privacy (why should the gas agency know my bank account, or why should the credit card guys know what my school grade was). This case was heard by a three-judge bench of the Supreme Court. The government argued before this bench that the right to privacy wasn’t a Fundamental Right (that is, one established by the Constitution), but merely a common-law right, and that legislation could take it away in the national interest. Since this is a constitutional matter, the three judges referred it to the nine-judge Constitution Bench.
In the course of examining the matter, the Constitution Bench looked at precedent - there have been cases that have pronounced on either side of the issue of whether it’s a Fundamental Right or not. While doing so, one of the cases they looked at was the sexual orientation case. In that case, what had happened was that the Delhi High Court had ruled that the section of the Indian Penal Code - IPC 377 - that criminalized homosexuality was unconstitutional (though the section was upheld in other situations like incest or bestiality; it criminalizes “unnatural acts”). But when it reached the SC, a bench (a two-judge one, I think) passed the buck, by saying “Parliament needs to make a law”. Among other things, that particular bench decided that there was no Fundamental Right to privacy (one of the arguments made during that case), and they couldn’t decide anything on that basis.
The Constitutional Bench decided to overturn that part of the 377 verdict that held that there was no Fundamental Right - they specifically did so, calling out the case by name. Being one of the highest possible forums, the Constitutional Bench is allowed to do this kind of thing; they actually overturned a whole host of other judgements dating back to the 1950s in this case. But because there’s already an ongoing review in the 377 case to a larger bench, they didn’t overturn the earlier two-judge ruling. That will be taken up later again.
So, to understand why this is significant, you need to know a little about the Indian Constitution. In Part III, it enumerates a bunch of Fundamental Rights - the usual suspects like the Right to Life, Equality, Free Expression and all the good ones. But there are also other rights peppered through other parts, and through other legislation, which are not considered Fundamental (say, the right to drive a car). By reading the Right to Privacy into Article 21 (which is the protection of life and liberty), they’ve made it part of Part III.
We have this thing in India called the Basic Structure doctrine. According to it, no law - not even a constitutional amendment - can overturn the Basic Structure of the Constitution. For example, a would-be dictator cannot pass an “amendment” appointing himself President for Life because that would violate the very core of the Constitution. Basically, nothing can overturn Basic Structure. So now, the Right to Privacy is part of this unshakable core of Indian law.
What they’ve ruled in terms of sexual orientation is that notwithstanding Section 377 and that case’s outcome, nobody can barge into your bedroom and arrest you for an offence under it. So unless you make your acts public by yourself, you can’t be charged for them. Which is a huge baby-step, but we still need to get rid of 377, whether by judgement or by an Act of Parliament.
Hope this makes sense. It’s really big, and I’m quite proud of our court right now…
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Is this conjecture or actual intended policy? Just curious. We Gerrmans do have a national identity card, which most carry on them. (That part is not mandatory, but many believe it is.). And yes, it’s the go to document for everything when you need to establish your identity, as in opening a bank or registering with the Uni.) But that’s not linked. There’s no way a credit card company can use that card to check where you went to school or anything like that.
Now, swedes and other Scaninavians use their id far more openly. Apparently you can make nearly any public record request if you know the ID in question, down to to tax filings.
So where does India fall on this spectrum?
Really comprehensive comment, thanks for giving all of us more background info on the ruling and taking the time to do so. I love seeing comments like these
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It’s complicated. The whole history of Aadhaar is just weird. It started out as the National Population Register, and then slowly mutated and morphed into something of a monster that both establishes identity and holds data.
The situation as it stands is, you need to provide (biometric or OTP) authorization to allow access, but the data is collected, and certain services may mandate that you have to provide the authorization, and until now, there was no legal remedy for that. There are good reasons to have data links. For example, supposing I’m eligible for some kind of compensation from the government (say flood relief); they can use the Aadhaar to verify that I’m really eligible, and if I give an authorization, rather than submit a second or third form, my bank account is directly linked, so the amount can be transferred immediately. This is one of the big promises - Direct Benefit Transfer.
They used DBT to verify and authorize cooking gas subsidies - everyone had to link their Aadhaar with their gas agency, and if you were classified as eligible for the subsidy in the database, you received the subsidy directly into your account.
But what if I was eligible, and didn’t want to provide the Aadhaar or my bank account? One of the rulings that has come out is that if I’m eligible, I don’t have to. If they have an alternate way of verification, they have to use that if I refuse to provide the Aadhaar. And Right to Privacy means that they can’t ask why either.
There are all kinds of other IDs - like driving licenses, or the Permanent Account Number used by revenue department. There are also other mechanisms like a direct visit to the place of residence for verification, etc. The original case was to force them to use these mechanisms.
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Should happen in Merica by the end of the next century, or sooner…
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That’s awesome. Thank you for context. The media here in the US is getting bits and pieces of this, and of all the Indians I know, very few of them actively live in India now or have anytime in the past few years – mostly a few old coworkers.
Glad to know there’s some group out there making good decisions.
It’s gotta start somewhere, bro, though I understand why you might be so jaded, given these days.
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